NPPF Transitional arrangements - Public forum - Planning Advisory Service (PAS)

Richard If I have interpreted your summary correctly, at point 4, you seem to be suggesting that any saved policies that conflict with the NPPF will no longer apply. However, the definition of "local plan" in Annex 2 of the NPPF states that this includes "old policies which have been saved under the 2004 Act". Paragraph 214 also states that policies with a limited degree of conflict with the NPPF can continue to be used provided that they were adopted since 2004. It would seem that these two sections of the NPPF indicate that all saved policies from plans adopted since 2004 are also to be given 12 months grace. I would be interested to hear to your thoughts on this.

Hi Mark, You are right that saved policies fall in the definition of 'local plan' in annex 2. The key point here is that saved policies were not "adopted since 2004" as defined in footnote 39 to 214. This means 214 does not apply to saved policies but 215 does. For clarity, 214 only applies to all policies adopted since 2004 using the PCPA. Saved policies were saved under 2004, but not adopted, as they were produced under the Acts prior to 2004. Adam

Now all that is clear - has anyone come up with a quick and robust means of doing the 'consistency' check - or are we all waiting for the 'tool' mentioned by Andrea?

Mike, The 'tool' has been piloted, obviously using the draft NPPF. Once we have amended it based on those pilot comments, and updated to reflect the adopted NPPF, it will be available. I understand this may be towards the end of April. I'm sure you can appreciate we want to make this as useful and robust as possible and that as we had to wait until Tuesday to see the finished NPPF we have not simply been able to produce the tool immediately. The purpose of piloting against the draft was to make sure there was as small a time lag as possible. Hope this helps Adam

'Adopted since 2004 seems crude', surely it should more eaxactly say adopted since the date of the implementation of the relevant parts of the 2004 act. I think this was 28th Sept 2004 but can be sure. Clarifications /errata of this nature should surely be on a clarification/errata sheet as they are in other UK planning jurisdictions for their NPPF equivalents. We cant all be expected to read every PAS post - well perhaps we should :) The issue over saved policies is worrying as most green belt is designated as saved policies, and so if a plan is considered 'out of date' and as the NPPF has to be 'read as a whole' you can guess the rest. We class a and class b greenbelt. Sure this is not what ministers intended. Am I wrong? I have a word for whoever wrote para 214. Now what where you saying about tools?

Thanks Andrew, I believe the footnote to 214 clarifies the 'adopted since 2004' as it clarifies that it means 'adopted in accordance with the PCPA 2004'. The 'cut off date' is therefore when that came into force. I'm going to have to ask you to clarify your point about saved policies, or in particular the green belt, before I attempt to answer. 215 will apply to all saved policies. As the wording of green belt policies in the NPPF is largely the same as previous policy wording, it is likely that any saved policies regarding the green belt will carry significant weight. I say this as I am using the part of 215 in brackets which says 'the closer the policies in the plan to the policies in the Frameowrk, the greater the weight they may be given'. Even taking the NPPF as a whole, and acknowledging the need for a balance between economic, social and environmental, green belt falls under the footnote 9 to para 14 as 'specific policies in this Framework indicat[ing] development should be restricted'. However, I'd welcome some clarification of your point here. Adam

I have taken it upon myself the task of doing a thorough compariosn of our 2002 UDP Poliices against the NPPF - how hard can it be? I am particularly keen to get to grips with the concept of closeness of policies to the NPPF - early thoughts include a % score based on how the proportion of bullet points or sentences can be matched with. I am not entirely joking - how should one do this - I don't think I can wait for the tool you see.

Adam that footnote struck me as rather wolly After 28th Sept 2004 ALL plans will need to be adopted in accordance with its provisions, both core strategies etc, and old style local plans adopted since 28th Sept 2004 under the transitional provisions of the act (Swindon, Fenland etc.) The literal interpretation, which im sure you are right on, is that the 1 year implementation period applies to all development policies, other than saved policies (because as you say they are not adopted since that date merely carried forward since that date), and in plain English terms that para could have been better drafted. Mike - the key word in the NPPF was 'relevant policies' - that was added for a purpose. There is little need to evaluate policy compliance on issues the NPPF is silent upon. I would also argue that there is little point in wasting time assessing such policies in terms of how flexible, business responsive each such policy is, as these are 'other material considerations' which the decision maker must apply anyway as they are in the NPPF anyway.For that reasons the 'scales' approach in the implementation section of the NPPF (weighing up the plan on the one side and the NPPF on the other) seems inefficient as planning law says the scales should be plan on one side and other material considerations on the other. Now the decision maker has to apply two scales tests and not one - longer appeal inquiries im sure - but of course one test is law and the other is just policy. Also your % point is flawed as it is only the relevant lemmas or clauses of a policy which matter, so compliance for a single policy could vary 100% to 0% for different cases.

Re the toolkit to be helpful I would suggest the best approach would be a 'what strategic decisions do we need to make now' approach rather than in the style of a concordance checklist. For example new way of circulating trajectories in NPPF and of course plans will need to be updated anyway because of the latest HH projections (the 2010 based projections immanent) So what are the revised priorities now? For some LPAs that might mean rephasing, for other bringing forward decisions on land allocations, whether on applications or a partial plan review. Note there is no Plan, Monitor Manage Approach in final NPPF (Apply, argue, appeal instead?) which is surprising, and applications where there is no 5 year supply get no extra leg up - it is simply the plan is considered out of date and are considered on the planning balance like any other. (I would also add that any attempt to introduce a mortitorium on an adopted plan in the light of lower HH projections would likely to be unlawful for several reasons). DCLG lawyers seem to have been at work here. Note the recovered appeal decision on the Earl of Derby land at Newmarket (the Forest Heath Case site) where the SoS agreed with the position that early release on a section 78 appeal would prempt the requirements to consider alternatives through a plan/SEA process under the SEA directive - very interesting. The plan making process needs to run its course hence no fixed 1 year period for new plans - and they should have applied the same logic to updating old plans, the fixed 1 year rule is unlikely to survive muster if it relates to a SEA strategic site allocation.

I just wanted to try to get this one firmly answered and understood, so please bear with me! If you have adopted an 'old style' local plan or UDP using the transitional arrangements in the PCPA 2004, then you have adopted it under the provisions of Town and Country Planning Act (1990). This is clearly set out in the 2004 transitional arrangements. The transitional arrangements were written to assist local authorities who had reached a certain stage to allow them to carry on to adoption. Again, these were adopted using the provisions of the TCPA 1990. So, 215 applies to saved policies AND ALL old style local plans or UDPs EVEN IF they were adopted after the PCPA 2004. This is because they were adopted using the provisions of the TCPA 1990. None of them were subjected to tests of soundness and they are not Development Plan Documents.

Adam, I am not a lawyer and only a humble planner but does not Part 6 of the transitional arrangements (SI2004 2205) which says: "subject to paragraph 2, any step taken or purportedly taken for the purposes of part 2 of the 2004 act before the date on which these regulations come into force shall be treated, on and after that date, as being taken after that date" mean that local plans adopted after 2004 are in fact DPD, to which NPPF para 214 applies?Any thoughts greatly received.

John, I too am a lowly planner! Please accept my use of 'shouty capitals' in the following response. I can't seem to use bold text, which I would have preferred to use to reflect any emphasis. My reading of it is that, it is Schedule 8 of the PCPA which applies to ALL old style local plans or UDPs. That schedule makes it clear that such documents are to be prepared subject to the provisions of the 1990 TCPA, and hence they are not DPDs or LDDs. The transitional arrangements you refer to in the regulations relate solely to 'any step taken FOR THE PURPOSES OF Part 2 of the PCPA' (in preparing what is therefore an LDD or DPD). As defined by the PCPA, 'old style' local plans or UDPs are not DPDs or LDDs and hence are not prepared under Part 2 of the PCPA. They are prepared and examined under the TCPA 1990 - again, as set out in Schedule 8 of the PCPA 2004. They were not, for example, subject to the tests of soundness, as they were all examined under the provisions of the TCPA 1990. So, regardless of the date of adoption of any old style plans and UDPs, they fall into 215 of the NPPF not 214. So, in summary...! Any old style local plan or UDP was NOT prepared under Part 2 of the PCPA, it is NOT a DPD or LDD and is therefore NOT subject to any of the provisions of the PCPA 2004 and associated regulations (except Schedule 8 setting out the transitional arrangements - which confirm all such documents are prepared and examined under the provisions of the TCPA 1990). I hope this clarifies things.

[This a cross post - originally on the Agriculture thread] Now that PPS7 and its Annex A have gone, that leaves an interesting transition issue. Where do those who are currently living in temporary homes on a 3-year agricultural planning permission and subject to demonstrating a successful business at the end of Year-3 stand?

Richard. I hope this is a pretty straightforward issue, but I ask others to jump in if I have got this wrong. The deletion of PPS7 Annex A does not mean that authorities can't set out the conditions as described in it. All it means is that, as the NPPF no longer mentions those conditions, it is up to the authority to decide if they still want to attach them to any permission they grant. Any existing permission which applies criteria set out in a now-deleted PPS is not automatically 'null and void' by the deletion of that PPS. As I say, if I have got that wrong, please, someone, jump in here!

>> The deletion of PPS7 Annex A does not mean that authorities can't set out the conditions as described in it. All it means is that, as the NPPF no longer mentions those conditions, it is up to the authority to decide if they still want to attach them to any permission they grant. Some might also argue that the deliberate PPS deletions are a sign that they are no longer fit-for-purpose and so should be ignored - or at least replaced by updated versions whic are more NPPF-compatbile. Any attempt to re-instate the original PPS documents wholesale might be regarded as being against the spirit - and detail - of the NPPF. >> Any existing permission which applies criteria set out in a now-deleted PPS is not automatically 'null and void' by the deletion of that PPS. That may be true - but consider the case of one of my clients with almost 2 years to run on a PPS7 constrained agricultural mobile home permission. She feels that at the end of that period she will have to show 'essential need' AND 'historically proven financial soundness' whilst new applicants may only need to show 'essential need' maybe with a theoretical indication of future financial soundness. I must admit that at this juncture I am not sure what her best route forward is.

As someone directly on the receiving end of the changes brought about by the NPPF, might I offer some insight. Under the Annexe A regime, there were the five tests that could be applied to the permit of an agricultural dwelling. For the most par these five tests stood well in preventing the 'chancer' from gaining development where perhaps their long term intentions were somewhat less than honourable. However, all of those tests could be met by forward planning and enough financial backing so as to create a situation where planning could be gained. Generally speaking, those who were genuinely in for the longer term benefit of an agricultural dwelling find it difficult to meet all five tests, predominantly the financial and functional. This would be frequently due to financial input to fund the agricultural enterprise and also differences of opinion between applicant and LPA as to what constituted functionality. To establish and set up a new farm and agricultural practice within three years is a precarious task. Even an established farm will generally take a five year view on creating a new enterprise to profitability. Thus, gaining a dwelling would favour the better financed albeit that the long term intention was not as may be desired within the regulation and spirit of Annexe A. The new NPPF with its 'essential' phrase might appear to do away with all such tests and I do agree with Richard H that to re-introduce all the Annexe A guidelines in to local policy destroys the point of the NPPF and would it not likely be rejected by central government? But the NPPF makes great issue of sustainable development so would that not cover the element of financial sustainability as well? I do not support the financial test as under Annexe A for as I have banged on about before, that test is unreliable when considerd against how the markets for produce can change dramatically from one year to another. A farm meeting the test one year carrying out a particular practice could very easily not meet it again for ten years if the produce in question looses its market value. Under NPPF, 'essential' I feel stays close to the functinal requirement but the new sustainable procedure should be considered on a longer term basis, i.e. ten years. How that is controlled and implement is up for discussion. At the bottom of al of this I ask you all o consider the way your food is produced and that greater support is needed in establishing small farms which generally produce better quality food, better environment and give greater welfare consideration ,, all without grants which predominantly, only larger farms survive on.

Another related transition query: The text of the NPPF suggests that local plans etc may be used to some degree for the next 12-months. However I read the text as NOT including the deleted PPS documents in the 12-month window. In other words, these documents can no longer be directly referenced, effective now. Do others agree - or disagree - with my interpretation of the text?

Richard, You're right. Anything listed in Annex 3 of the NPPF has been replaced by the NPPF, effective March 27th 2012

Reminder sought: I have read through far too many NPPF related documents in the past few days so I'm experiencing some brain fade! I'm sure I saw a document somewhere saying that the deleted PPS documents etc should not be cut and pasted into local plans. Am I imagining this? If not, can anyone remind me where it might have been? Thanks!